Blog Traffic

February 11, 2005

Reports on Booker circuit action

The press and blogsphere have interesting Booker circuit reports this morning: the Ninth Circuit's recent Ameline ruling (basics here, commentary here) is reviewed in this law.com article; the Third Circuit Blog is reporting here "persistent rumors that the 3rd Circuit will be issuing a broad ruling 'soon' on Booker"; and this Bloomberg column provides a remarkable account of the Fifth Circuit oral argument in the appeal of Jamie Olis' 24-year prison term, which the piece says "may be the longest ever for securities fraud."

As we approach the one month mark since Booker was handed down, I continue to be intrigued (as previously discussed here) by the circuit contrasts in the pacing and process of Booker decision-making:

We have still not heard an official Booker peep from four circuits: the First, Third, Fifth and DC.

Four other circuits have been content with one major ruling, though these rulings have covered disparate topics: the Fourth in Hughes covered plain error; the Seventh in McReynolds raced to address retroactivity; the Ninth in Ameline covered plain error and additional procedural issues; the Tenth in Labastida-Segura addressed harmless error.

The other four circuits have been Booker busy: the Second Circuit through Crosby has spoken broadly to many issues, and a few smaller opinions have filled out the circuit story; a half-dozen dizzying plain error rulings in the Sixth Circuit have made my head hurt; the Eighth has had a steady drum beat of smaller opinions on a range of issues; and the Eleventh in Rodriguez picked a plain error fight with other circuits after having decided some smaller issues soon after Booker.

Comments

The Olis case is exactly why prosecutors unlimited "discretion" in selecting their targets is so dangerous to our entire society. This was a mid level tax manager who is serving 24 years for shareholder losses that the judge essentially just guessed at? Where are all the higher ups that actually made financial statement decisions and were the faces and voices to shareholders and took the credit when the price was going up? This is the classic "conspiracy" case where you say what you have to to keep prosecutors happy or this is the price you pay and sometimes you get to pay it alone... It seems the new white collar evidence guideline is- don't use common sense- don't require any standard of proof- just send a message and prosecutors are having quite a ball.

Posted by: Rukidding | Feb 11, 2005 9:12:40 PM

Prof. Berman

Thank you so very much for all of your work. While only an occasional visitor to s.t.c., I realize that I must spend more time with you. If only had time. [I'm a CJA attorney in Baltimore].

Best regards,
MDM

Posted by: Michael Montemarano | Feb 16, 2005 2:45:28 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB